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19
Jonathan
CHAPTER
JUDICIOUS
TRANSPARENCY
Klaaren*
1 Introduction
This paper reflects on two instances of contested openness occurring in the
course of the recent saga involving Hlophe JP and the judges of the
Constitutional Court.. While both gripping and significant, that broad and
significant story itself is not the focus here. 1 Instead, this work will
examine two specific events within that larger narrative. The first is the
publication by the Constitutional Court of the fact that the judges of that
Court were laying a complaint against Hlophe JP with the Judicial
Services Commission (JSC) and the upholding of that decision in the
courts. The second is the pair of decisions by the JSC to hold closed
hearings on the Hlophe matter and the reversal of both of those decisions
in court. In respect of the first event, the Constitutional Court judges’
publication and media statement was itself the subject of two judicial
decisions, one in the South Gauteng High Court and one in the Supreme
Court of Appeal (SCA). 2 In respect of the second event, whether the JSC
hearings would be open or closed was the subject of a public submission
process initiated and conducted by the JSC as well as two judicial
decisions, both going in favour of openness and against the JSC. This
paper will cover the expressed reasoning in these events as well as –
* BA MA JD LLB PhD; Professor, School of Law, University of the Witwatersrand,
Johannesburg.
1
For one telling, see J Klaaren ‘Hlophe JP and the three dimensions of current judicial
politics in South Africa’ paper delivered at the University of the Witwatersrand,
5 October 2009 (citing other versions). In his assessment of the wisdom of the action of
the judges of the Constitutional Court, Roux gives a close critical reading of the media
statement. T Roux ‘The South African Constitutional Court and the Hlophe
controversy’ unpublished paper, 27 November 2009 http://cccs.law.unimelb.edu.au/in
dex.cfm?objectid=43FA1016-E35C-7A6A-398B2D1F6BD650CC (accessed 3 February
2010) 1-3.
2 An appeal to the Constitutional Court was noted by Hlophe JP but later withdrawn.
‘Hlophe to withdraw Constitutional Court appeal’ Mail & Guardian Online 5 October
2009.
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